Chavis v. Hiram Walker, 2009 HRTO 498

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Fredrick Chavis

Applicant

-and-

Hiram Walker & Sons Limited

and the Workplace Safety and Insurance Board

Respondents

interim DECISION

Adjudicator: Jay Sengupta

Date: April 24, 2009

Citation: 2009 HRTO 498

Indexed as: Chavis v. Hiram Walker

1This is an Application filed on October 14, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code") in which the applicant alleges that his employer violated his right to equal treatment with respect to employment without discrimination because of disability, race and ethnic origin.

2The respondent employer has named the Workplace Safety and Insurance Board (WSIB) as an additional respondent and CAW Canada – Local 2027 (the "union") as an affected party. In its Response, the respondent employer asks that the Tribunal not deal with the Application because of the delay in filing it. It also asks the Tribunal to dismiss the Application because part of it, relating to discrimination on the basis of disability, has been appropriately dealt with by the WSIB which has exclusive jurisdiction. The Response provides information and documents in support of these requests.

3The WSIB has filed a Response and a Request for Order During Proceedings under Rule 19 of the Rules of Procedure. The Board seeks an order dismissing the Application or, in the alternative, deferral. It argues that the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16, Sched. A, as amended, confers exclusive jurisdiction on it and the Workplace Safety and Insurance Appeals Tribunal over those aspects of the Application that deal with the applicant's objection to decisions made by the Board with respect to various work related injuries and his claims for benefits. In the alternative, the Board seeks an order deferring the Application as another proceeding is or could deal with the issues raised by the applicant.

4The union has filed a request to intervene as it takes the position that some allegations made in the body of the Application relate to its conduct and they wish to be heard on those matters. The union has also asked in its materials that the Application be dismissed because of the delay in filing it.

5The applicant has filed a brief Reply and a Response to a Request for an Order.

DELAY

6The Application states that the events occurred during the course of the applicant's employment which began in September, 1988. Although he alleges that the last event took place on June 1, 2008, it is not clear what occurred on June 1, 2008, as the events described are alleged to have taken place on various dates in 1998, 1991, 2000, 2004 and 2006. The respondent employer's position is that the applicant has not been actively employed by the company since 2004. The applicant confirms that he has been off work since June 14, 2004 due to disability.

7Section 34 of the Code states:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

8The Application in this matter appears to have been filed several years after the incidents to which the Application relates. Section 34 of the Code requires applications to the Tribunal to be made within one year of the last incident of alleged discrimination unless the applicant can show the delay was incurred in good faith and there will be no substantial prejudice to any respondent.

JURISDICTION/APPROPRIATELY DEALT WITH IN ANOTHER PROCEEDING

9The Tribunal's authority is limited to dealing with claims of discrimination under the Code. The Tribunal does not have a general power to enquire into whether another tribunal or agency has erred in its decision-making: Baird v. Workplace Safety and Insurance Appeals Tribunal, 2009 HRTO 99. The material before the Tribunal raises a question about whether the allegations against the respondent WSIB are in the Tribunal's power to decide.

10The respondent employer has also raised the issue of whether the Application should be dismissed in whole or in part, on the basis of section 45.1, which states:

45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

DEFERRAL

11As the WSIB has requested in the alternative that the Application should be deferred, the Tribunal will invite submissions on this issue.

PROCEDURE

12The Registrar will schedule a hearing by telephone conference call. The union will be invited to participate in the conference call. The Vice-chair conducting the conference call will determine the nature and scope of the union's participation. The purpose of this call is to hear the submissions of the parties on the issues described above, including the applicability of sections 45, 45.1 and 34(1) and (2) of the Code.

13If a party or the union wishes to rely on any written materials (including written submissions, documents or case law) or facts not already before the Tribunal, it must deliver such additional material to the other parties and file it with the Registrar no later than two weeks before the date of the conference call.

14I am not seized of this matter.